82 N.W. 872 | N.D. | 1900
The plaintiff by this action is seeking a total divorce 1 from the bonds of matrimonv. The trial court found in favor of the plaintiff, and entered judgment divorcing the parties, and decreeing the custody of their only child, a daughter, to the defendant. The grounds of the action, as stated in the complaint, are extreme cruelty and desertion, but there is no claim that such extreme cruelty consisted of any bodily violence either done or threat
The parties were married at St. Paul, Minn., in the month .of June, 1889, and lived together in that city until their separation. Plaintiff charges that the defendant deserted him, in the manner above stated, on the 12th day of November, 1896, but it appears by the undisputed testimony, and it is a conceded fact, that the parties cohabited together in the month of August and in November in said City of St. Paul, in the year 1897. The particular acts of cruelty, as charged in the complaint, consists of frequent and violent quarrels and petty anno3rances caused by the defendant, and extending over a period of at least six years. It is charged that such annoyances and quarrels were chiefly caused by a groundless dislike and bitter prejudice cherished on defendant’s part against the mother and sister of the plaintiff. Another charge in the complaint is that the defendant unreasonably and without sufficient cause often refused plaintiff marital rights, and further that defendant falsely accused the plaintiff of conjugal infidelity, and falsely and maliciously preferred a charge of adultery against the plaintiff, and thereby maliciously and cruelly caused his arrest. To these charges the defendant answered, denying them broadly and in detail. The defendant also alleges that on the 14th, 15th, and 16th days of August, and on the 16th day of November, 1897, she cohabited and had matrimonial intercouse with the plaintiff. This intercourse is conceded by the plaintiff, and is now relied upon on both sides as constituting condonation of any and all matrimonial offenses as charged respectively in the complaint and answer and occurring prior to November 16, 1897. Defendant, by her answer, as a further defense to the cause of action alleged in the complaint and by way of recrimination charges the plaintiff with acts of marital infidelity committed with three other women, viz: with one C. W., a woman of ill fame, in the month of October, 1893, and in this connection the defendant charges that plaintiff contracted gonorrhea as a result of said intercourse, and subsequently communicated said disease to the defendant, and that the defendant experienced great suffering as a consequence of contracting said disease from her husband, and that as a result.of such disease the defendant was obliged to undergo a painful surgical operation. Defendant further charges that plaintiff had sexual intercourse with a housemaid in defendant’s employ in the.month of May, 1896. By way of further recrimination defendant expressly charges that the
Turning to the defendant’s case, we will first notice the fact, as has been seen, that the defendant, by way of recrimination, and as against the plaintiff’s cause of action, has alleged in her answer that the plaintiff has since said marriage been guilty of repeated acts of marital infidelity, and expressly charges that such acts were committed with three different women, who are named in the answer, and committed at times and places as set out in the answer. We shall find it necessary to refer to but two of these charges, both of which, in our opinion, are sustained. Defendant alleges “that in the month of October, 1893, plaintiff cohabited with one Cara Weise,
“Louie: I am going to take a car for Minneapolis now, and shall stay over there until next week some time. It is no use Louie. I cannot try any longer. I am a hypocrite every minute I am home, and I can’t do it, and shall not try. If we can’t fix it between us here all right, after a few weeks I shall go West. Am so sorry to cause you pain and sorrow, but I just can’t help it. John.”
“Wednesday, Nov. 11, ’96. Louie: I drink too much, stay out nighcs too much, and feel too bad, and I can’t do it any longer. Have written to her to come back. If she don’t I shall go out West to her next week. I must have her one way or the other, or I could not stick it out a week longer. Brace up, and get well, and try and be contented and happy. The Lord knows I wish it, but I can’t stay and try to help you at the expense of my own life; and I don’t believe I can be of any help to you the way I am. If I go West next week, will stay until it is fixed between us, and I feel sure you will arrange it when you feel better, and think it all over. In the meantime you will be provided for and made comfortable, and you always will be. As things stand, I can’t stay home until I decide about going West. I cannot see you, or talk to you. I feel sorry for you, for her, and for myself, and between the conflicting emotions I can’t stand It. It surely would be too much for me very soon, and would result disastrously, I fear. I feel much better alone, and then know I am at least true to one. I cannot be to two. It is she or something much worse for us all, and you surely cannot wish that. Brace up, Louie, and bear it. Either you or I must conclude to suffer for the sake of the other, and I have tried and failed. Now you must try, and see if you cannot let me go, for my sake. You surely do not wish to punish me, and you can do much for me by releasing me. Otherwise I must go, and everything will be wrong for all of us. But I must do it, if there is no other way, in protection to myself. Do not send for me. I cannot bear to see you feel bad, and will not come back again. I cannot do it, so do not ask. It is better for me to stay away now than to wait until she comes, or until I go, for we both would be perfectly miserable the next week. Send my things down this afternoon, so I won’t have to buy new ones. Good-bye. John.”
“Helena, Montana, Nov. 17, 1896. Louie: Got your telegram, and waited at Great Falls for your letter, as did ‘Cis’ for one for her. We had our plans all arranged, and the letters did not change them. I came to Flelena last night, and leave for the coast tonight. Don’t know where I will stop next, or how long I will stay, so don’t write again, as a letter would not catch me. Am having a nice trip and a good 'time. You were entirely wrong in your surmise as to Celia. She is all right, and always was. I don’t like*199 at all the way you wrote her. You said many things you should not, and it don’t do any good. Neither did it do any good to write me about her. I told you in the last letter I wrote how I wanted it, and how it must be, and so it must be. I may come home after a time, but if I do I don’t want to be molested in any way, or should immediately jump out again, and then I would stay away. You wrong Celia greatly for blaming her for anything I do. She is not to blame in the least for anything I have done. It is entirely my own doings, and I alone am to blame for it. Can’t you see that by your interference you are only making matters worse? You will not be satisfied until you drive me out of the country entirely. When you do that, am sure you will find yourself far from satisfied, and we all will get the worst of it. I am not only willing, but anxious, to get back to my business, and help John; but when I go back to stay I want ‘Cis’ with me, or I could not stay, as I told you before. I need my business to get along with, and have a great dea|t involved there, but not so much as to allow it to stand in the way of my future. I can do well and get on finely anywhere out here. You say a good deal lately about the poorhouse, not only to me but to others. You know that you will always be cared for.”
"St. Paul, Minn., Nov. 25, 1896. Louie: I got back this morning all right. Left her on the coast in Washington. Don’t know just where she will stop, as she was going the last I saw of her; but I will hear soon. Don’t bother me, as I can’t come back, and don’t want to be interfered with if I am going to stay here. Was going to send you some money today, but John said he sent you $50, and I guess you have some yet. If you run short during the week, let me know. John.”
The following letter was received by the defendant the first week in December, 1896: “Friday, p. m. Louie: Got home this afternoon, but can’t come up to-night. There is no earthly use in my trying to do it, and I have made other arrangements definitely. My peace of mind, rest, sleep, and ability to attend to work compel me. We worry each other, and both will be better off alone, if-you would only look at it reasonably. Please don’t write me letters, or to mother either. They only worry us, and will do no good, as I shall not try again. Please send all my things to me,- — • shaving set, violin, and clothes. Will send up for them Saturday or Monday, if you will have them ready. Will send you money in day or two, and will keep you supplied regularly. Think you had better go East when you get better, as I very much hope you will soon. John.”
One other letter was put in evidence. It reads as follows: “Minneapolis, Minn., Feb. 8, 1897. Louie: Was over yesterday for supper-, and intended going to see you, but it was after 8 before I got started, and it was then too late. Have opened a small office here, and will see what turns up this spring. I took the old hand type and material, so the office did not cost anything. I send you check for $10. I have sent you over $15 for 2 months, and paid the
It appears by the testimony offered by the defendant that said C. R. left Minnesota in the fall of 1896, and that plaintiff, soon after her departure, went West also, and visited, among other places, Great Falls and Helena, Mont. He was seen and recognized at Helena on the 17th day of November, 1896, and the register of the Helena Hotel on that day contained the following entry in plaintiff’s handwriting, “J. A. Gardner and wife.” It is further shown that later in the fall of 1896 both the plaintiff and C. R. had returned to Minnesota, and that the register of the St. James Hotel, Minneapolis, Minn., on “Sunday, December 6, 1896,” contained the following entry, “Albert Gardner and wife, Mpls,” which entry was also in plaintiff’s hand writing. It further appears that plaintiff’s wife, this defendant, was not with plaintiff on the dates stated, and did not stop at either of said hotels with plaintiff. The plaintiff had an opportunity to combat this evidence-while on the stand as a witness in his own behalf in rebuttal. He did not do so, despite the fact that he was in a position to deny his said registration at said hotels at the times mentioned, if the same could truthfully have been denied. To our minds, a very strong presumption arises from the plaintiff’s silence that the testimony on this feature • of the case is true. That, it is, in connection with the other evidence, very damaging, is evident without further comment. In lieu of any such denial, the plaintiff is content to testify in general terms that he was never, criminally intimate with C. R. at said hotels or elsewhere. There is other evidence in the record, to which we have not alluded, pointing strongly to the fact that the plaintiff in 1896 and 1897 was sustaining illicit relations with said C. R., and that for a part of this time the plaintiff absented himself from his wife and home in order to keep up this liaison without let .or hindrance on account of his domestic, ties. To our mind, the fact of this criminal intercourse with C. R. is conclusively established from various and independent sources of evidence, and we are at a loss to understand on wliat theory the learned trial court could have reached an opposite conclusion. There is, in our opinion, abundant testimony to sustain the charge under consideration aside from the explicit and positive evidence of the plaintiff’s own oft-repeated confessions, as testified to by the defendant. Just here
But, as we have seen, the parties to this action voluntarily cohabited with each other as man and wife in August, 1897, and likewise as late as on November 16, 1897. Defendant’s counsel contend that such cohabitation operates in law as a condonation by the plaintiff of all causes of action on account of extreme cruelty existing prior to such voluntary cohabitation; but under the evidence, when considered with reference to the statute governing the subject of condonation, this point is not clearly with defendant, and we will therefore pass it over, as the same is unnecessary, in our judgment, to a proper decision of the case. But, on the other hand, it is strenuously contended by counsel for the plaintiff that the causes of action against the plaintiff pleaded by defendant in recrimination were fully condoned by defendant and wiped out as causes of action by said voluntary cohabitation between the parties, and consequently that such causes of action are not a bar to plaintiff’s alleged cause of action. As has been shown, this point, however ruled, would not prevent a reversal in this case upon the ground that plaintiff has failed to sustain the charge of extreme cruelty by a preponderance of testimony. But we are decidedly of the opinion that the plaintiff is not in a position to avail himself of the alleged condonation of the causes of action against the plaintiff which are set out'in the answer by way of recrimination, and which, in our opinion, have been amply sustained by the evidence in the case. Under the statute (section 2749, Rev. Codes 1895, which voices the judicial decisions on the point) there is annexed to every condonation a vital condition subsequent. The statute declares that “con-donation implies a condition subsequent that the forgiving party must be treated with conjugal kindness.” The evidence in this record irresistibly leads this court to the conclusion that since the date of the said condonation in August, 1897, and on November 16, 1897, the forgiving party, the deeply injured and betrayed wife, has not been treated with conjugal kindness by her husband, the guilty party. The record compels an opposite conclusion, viz: that since the date of such condonation the defendant has been subjected to the greatest possible conjugal unkindness.
This brings us to the evidence bearing upon the matter of the arrest of the plaintiff and said C. R., which took place after midnight, at St. Paul, on the 22d day of November, 1897, and under which the parties were taken by the police to the police station, and there kept over Sunday, and until the next day, when the two were bailed out. The case against the parties arrested after several continuances was dismissed, and never came to a trial on its merits.
We should have stated, in another connection, that the plaintiff admitted on the stand that he wrote the letters to his wife which are set out in this opinion, and attempts to do away with their effect as confessions of gross infidelity to his wife by saying, in effect, that they were written only to induce his wife to apply for a divorce, which he was anxious to have his wife obtain, and had never been able to induce her to apply for. We will only say that this court cannot accept this version of these letters as their only explanation. The letters, in their statements of fact, tally with all the rest of the testimony bearing upon the liaison between the plaintiff and C. R., and, while they might furnish evidence upon which defendant could procure a divorce, had she seen fit to seek divorcement, they also tell of guilt in fact, and their statements appear to us to be mainly true in their substantial features and in their essential details of fact. In concluding this branch of the case we wish to remark that, while this record discloses a most deplorable state of marital infelicity and infidelity, yet this court cannot for a moment entertain the suggestion of counsel that such reasons should influence a coitrt in favor of granting a divorce. We cannot place a premium upon marital offenses. Ic may be that in a given case the real interests of the parties or the welfare of society would be subserved were the parties legally separated. But courts rest under the most solemn obligation to apply the law as it exists to the facts of each case. A divorce may be granted only upon statutory grounds, and where such grounds exist a divorce may not be denied. A court must not be influenced by any general views concerning the welfare or interests of the parties or of society.
One further matter remains for brief consideration. In this court a motion was made in behalf of the respondent to strike the statement of the case, which was allowéd and settled by the District Court, from the record and files in this court. The motion is based upon the ground that such statement was not settled in the court below within the period allowed by statute for that purpose ; that the time for such settlement had not been extended by the trial court, and that appellant had never excused her default in the matter of time in obtaining a settlement of the statement in this action. We have considered the affidavits and counter affidavits filed here and submitted to the trial court upon the matter of extending time and settling the statement of the case, and our conclusion is that time was extended and the statement settled upon substantial grounds and upon due cause shown therefor. In pro